Walking out of the treaty is not a realistic option for India; nor is being aggressive about using water from the Indus-basin rivers. There is the China factor too as some of the rivers under the Indus Water Treaty originate in Tibet.
INDIA shares natural water bodies with many neighbouring states. Of them, rivers have remained a constant source of conflict between India and these neighbours. India has riparine disputes with Nepal (over Kosi and Sarada), Bangladesh (over Ganga and Kushiyara, among others) and Pakistan (over Indus and Chenab, among others).
It is India’s dispute with Pakistan which is in the news right now. The dispute is regarding the interpretation of the around half a century-old Indus Waters Treaty, 1960 (IWT). The treaty was signed by the two sides for “attaining the most complete and satisfactory utilisation of the waters of the Indus system of rivers.”
The recent dispute is regarding modifications in the treaty being sought by India. The two sides are already presenting arguments at the Permanent Court of Arbitration (PCA), in The Hague, Netherlands on a related dispute regarding the Kishenganga and Ratle hydroelectric power projects being constructed by India.
As per the IWT, India got roughly 20 percent of the river system water while Pakistan got 80 per cent. However, India also got the rights to use the water of this 80 per cent share for agricultural, domestic, non-consumptive and hydro-electric power purposes.
However, this is not the first time Pakistan has approached the PCA regarding the IWT. It had taken India to the PCA in 2010 too. Then, the dispute was regarding the Kishenganga hydro-electric project by India and the Neelum–Jhelum hydroelectric project by Pakistan.
What is the history of the dispute?
The Indus river system consists of five major rivers: Indus, Jhelum, Chenab, Beas and Sutlej, that start in the Himalayas and travel westwards to flow into the Arabian Sea. Historically, the abundant water supply from the five rivers has sustained civilisation after civilisation in the region, starting with the Indus Valley Civilisation. After the British took control of the area in the 19th century, they expanded the canal system, irrigating new areas and transforming the economic and social make-up of the region. The end of the British rule in 1947 and the formation of India and Pakistan sowed the seeds of the riparian conflict because of the way the international borders divided the basins and flow of the rivers. Two of the rivers — Sutlej and Beas — flow from eastern (Indian) Punjab into western (Pakistani) Punjab. Three rivers — Chenab, Jhelum and Indus — flow from the disputed region of Jammu & Kashmir into Pakistan. To complicate matters, two of the rivers — Indus and Sutlej — originate in Tibet, which brings China into the issue.
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For a long time, India and Pakistan could not agree on a way to share the river system. They first signed the Standstill Agreement of 1947, upon expiration of which India stopped water from flowing into Pakistan. Then they signed the Inter-Dominion Agreement of 1948 by which India asked for annual revenues to be paid to it for the water. This accord failed too. Then, at the suggestion of the World Bank, which now is the custodian of the IWT and from which both sides needed money for construction of dams, both India and Pakistan sat down to iron out their differences.
The two sides managed to sign the IWT after six years of negotiations, post which India got roughly 20 percent of the river system water while Pakistan got 80 per cent. However, India also got the rights to use the water of this 80 per cent share for agricultural, domestic, non-consumptive and hydro-electric power purposes.
Despite the friendly aims of the IWT, Pakistan has objected to nearly all Indian projects, thereby delaying most of them.
What is the current dispute?
Through a notice issued on January 25, India asked for modifications in the IWT, as per Kanchan Gupta, senior adviser to the Union Ministry of Information and Broadcasting. The reasons can be traced back to 2006, when Pakistan first raised issues with the Kishenganga project, and in 2012, when it raised issues with the Rattle project at the Permanent Indus Commission. Then in 2015, Pakistan asked for the appointment of a ‘neutral expert’ for examination of its objections. But in 2016, it unilaterally retracted its request, and instead sought resolution of the disputes through a Court of Arbitration.
This decision to retract its 2015 request was unilateral and India was not consulted. India claimed that the retraction amounts to a violation of Article IX of the IWT, which provides ways for settlement of differences and disputes. In the meanwhile, India too has made a request to refer the matter to a ‘neutral expert’.
Because of the arrangement within Article IX of the IWT, India is arguing that there is a graded system of resolution of disputes, and that Pakistan cannot jump from the neutral expert to the Court of Arbitration.
The World Bank initially ‘paused’ the second proceeding sought to be initiated by Pakistan in 2016, but subsequently allowed Pakistan to go ahead with the process. India’s modification request was issued two days before the scheduled beginning of the hearing on this on January 27, 2016. India didn’t participate in this hearing, saying that the court wasn’t competent to hear the matter, and that the matter should first be referred to a ‘neutral expert’ as per the IWT.
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What are India’s objections?
India’s objection is to the two parallel processes being carried out simultaneously. It has claimed that the two dispute resolution processes running simultaneously amounts to a ‘material breach’ of the Article IX of the IWT.
India has argued that Article IX of the IWT, which provides for ‘Settlement of Difference and Disputes’ is graded. This Article states that any question which arises between the parties shall first be examined by the Permanent Indus Commission. If this fails, then a difference will be deemed to have arisen, which is to be settled by a neutral expert. If even this fails, then a dispute will be deemed to have arisen, which is to be settled by a Court of Arbitration.
It is because of such an arrangement within Article IX that India is arguing that there is a graded system of resolution of disputes, and that Pakistan cannot jump from the ‘neutral expert’ to a ‘Court of Arbitration’. Pakistan, on the other side, is claiming that the neutral expert’s opinion is only for ‘technical issues’, and that it has referred the matter to the Court of Arbitration since there are ‘legal issues’ involved.
What is the best way to resolve the stalemate?
After the Pathankot (2016) and Pulwama (2019) attacks on Indian forces by outfits allegedly trained or based in Pakistan, India toughened its stance on the IWT and vowed to not let even a drop of water allotted to it under the IWT into Pakistan.
Water is of concern for Pakistan. Last year, around ten per cent of the country was flooded in what was described as the worst flood in the history of Pakistan. Additionally, Climate change has become a serious concern now and in that light, it might be a good idea for the two sides to sit together and redraft the terms of the IWT.
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Walking out of the treaty is not a realistic option for India; nor is being aggressive about using water from the Indus-basin rivers. There is the China factor too since India and China share some rivers and some of the rivers under the IWT originate in Tibet. For now, the best possible solution for both India and Pakistan is to sit down at the (re)drawing table and reach a consensus.